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2018 (7) TMI 628 - HC - Indian LawsNon-payment of borrowed money - dishonor of cheque issued for repayment - Instead of paying the amount, respondent has sent a reply notice dated 12.10.2002 with false averments - section 138 of N.I. Act - Whether the learned Additional Sessions Judge (Fast Track Court No.II) Tiruchirapalli was right in setting aside the Judgment of the trial court? - Whether this appeal has to be allowed? Held that:- The accused has not disputed the fact that Ex.P2/cheque is his cheque. He has also not disputed that the signature found in the said cheque is his signature. However, he denied the allegation that he borrowed the amount from the complainant on 02.12.2001 and in order to discharge the said debt, he issued Ex.P2 cheque. According to him, he does not know the complainant. He only knows PW1 as she conducted a chit in which his mother was a subscriber. The complainant has stated in Ex.P1 (power of attorney that he is not able to personally be present and perform various acts and deeds and hence he executed the power of attorney in favour of PW1. The accused has not disputed the genuineness of Ex.P1. Further, the evidence of the PW1 would show that she had personal knowledge about the transaction which took place between her father (complainant) and the accused. Hence no adverse inference can be drawn against the complainant for his non-examination as witness. The findings of the learned Judicial Magistrate No.IV, Tiruchirapalli in C.C.No.460 of 2002 dated 17.05.2006, that the accused has committed an offence u/s.138 of the Negotiable Instruments Act is restored - In so far as the sentence awarded by the trial court is modified as six months Rigorous Imprisonment and fine of ₹ 5,000/-, in default, three months Rigorous Imprisonment is awarded.
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